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- [00:00]
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- [00:30]
Ben Wittes
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- [02:35]
Natalie Orput
Hi, I'm Natalie Orput, Executive Editor at Lawfare. I help manage everything Lawfare puts out into the world and I also write about international law, democracy and the rule of law. Lawfare's core mission is to bring you reliable, independent, non partisan analysis from true experts at the pace of the news. We refuse to sensationalize or dumb down because national security is too complicated and too important to be a talking point none of our work happens without support from people like you. Lawfare is a nonprofit organization. We keep our work free and never put up paywalls. That means we rely on our readers and listeners to keep us going. In today's environment of escalating threats to an independent press, please consider supporting our work. Head to lawfairmedia.orgsupport to help us keep doing what we're doing and to do it for free. Thanks for listening and for caring about the things that matter.
- [03:40]
Eric Columbus
It's an immunity deal. Immunity for any against any possible enforcement action that the federal government could bring at any time based upon anything that you or your family or your businesses or their businesses have done up to the date of the settlement.
- [04:02]
Ben Wittes
It's the Lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, with lawfare Senior Editor Eric Columbus.
- [04:12]
Eric Columbus
There also is, as you say, an equal protection component about the type of victim that I think is probably uphill battle because the government, as I said, can, can, is allowed to pick and choose, but what types of victims it wants to, harms it wants to remedy.
- [04:31]
Ben Wittes
We're talking presidents who sue themselves. Today, Donald Trump has done the impossible. He has settled litigation with himself on the basis of the creation of a slush fund to pay off political supporters, along with a shocking immunity agreement by which the government never seeks to sue him again. Eric and Lawfare senior editor Anna Bauer have written a lengthy examination of this. This whole mess of issues. We go through it all. I want to start with the backstory here. Donald Trump sues the irs. Why did he sue the irs? And what, if any, merit did that suit have?
- [05:26]
Eric Columbus
The New York Times and ProPublica published stories about Donald Trump's tax returns that clearly came from a leak of some sort.
- [05:39]
Ben Wittes
And this was back in the first term, right?
- [05:41]
Eric Columbus
The leak. I don't recall precisely when the stories were published, but the. The leak, as it turned out, was from documents stolen by an IRS contractor named Charles Littlejohn in 2019 and 2020. So, yes, the documents were pilfered during Trump's first term. And. And this guy took documents from a lot of people, a lot of big shots, including Trump. He was prosecuted for it by the Biden administration and sentenced to five years in federal prison. So completely normal disposition of that case. Trump, being Trump, sued, and he was, in fact, wronged. He was a crime victim. And so it was not entirely crazy that he would want some sort of remedy. The hedge fund magnate Ken Griffin also sued. As it turned out, he got only an apology as a Remedy. Trump obviously got a whole lot more. There are a bunch of problems with Trump's case. There is a statute of limitations issue. The. The. The statute of limitations begins to run when you learn that your tax information was disclosed without authorization. He claims that didn't happen January 29, 2024, when he got an IRS letter saying that Little John had been charged with disclosing his returns. But that had been known long before, or at the very least, when Little John pleaded guilty in 2023. One of Trump's own attorneys addressed the court at that time. So it's pretty hard for Trump to claim that he was ignorant before then. There were some. Some other issues that Little John was a contractor. It's not clear to DOJ would. Would have liability. So, you know, in a normal course of events, the government would have defended this case. And the Ken Griffin example, where Griffin got a deserved apology, very much stands out. Trump got a whole lot more.
- [07:54]
Ben Wittes
Right. So it's fair to say that leaving aside the legal merits of the case for a minute, you're not. The IRS is supposed to protect people's tax returns. Leaks of tax returns are bad. Although there's a fairly good argument that if you're president and you promised to release your tax returns and then reneged on the promise, it may be a little bit less bad than that Said, it's no less illegal. And he was, in this instance, a civil liberties victim. And there's thus some righteousness to the idea that something inappropriate happened here, but he wouldn't win the suit. Is that a fair summary?
- [08:44]
Eric Columbus
It's probably that he. He would probably not win the suit. Yeah. And even if he did win the suit, the damages that he would be elder for would be vastly smaller than what he received.
- [08:55]
Ben Wittes
All right, so Trump finds himself in this quite enviable position of essentially suing himself, which is to say he's suing the federal government, that he's now ahead of the unitary executive of that federal government, and the IRS ultimately reports to him. Before we get to what happened, let's break down what his authorities are. He is both the plaintiff here, and he is not quite the defendant, but he does direct the defendant. What are his powers? What does he have the authority to do? What doesn't he have the authority to do regarding directing the IRS to settle this case with him that it would lose on the basis of the $10 billion that he sought damages?
- [10:00]
Eric Columbus
Well, if that kind of depends upon how one views presidential authority, you could, if you're a fervent believer in A unitary executive. You would say that the President has full authority to direct the irs, the Department of Treasury and Department of Justice as their lawyers to do anything in litigation and even to settle a case on generous terms that he has filed against them. There are, there is a criminal statute that provides that it's a crime for certain people, including the Treasury Secretary and the President, to order the termination, either the investigation or the termination of an investigation of any tax audit into a taxpayer. Of course, under the Supreme Court's Trump decision from 2024, Trump would not be able to be prosecuted for such an official act, and perhaps not even the Treasury Secretary could be. But there are all sorts of, of constitutional reasons and policy reasons why we would think that the President would not have the ability, Ability to do this. But that is by no means an uncontested view.
- [11:24]
Ben Wittes
Yeah, I think as a functional matter, the President does have the ability to do this because he has the authority under the Appointments Clause to appoint the Treasury Secretary to fire the Treasury Secretary, to appoint the Commissioner of the irs, to fire the Commissioner of the irs, to appoint the Attorney General to fire the Attorney General. Right. And the power to do that is functionally the power to direct a settlement, assuming you're willing to tolerate the political consequences for behaving that way. Is that, do you think it's, it's, in functional terms, more complicated than that.
- [12:09]
Eric Columbus
Well, then there is the issue of whether a court has jurisdiction in such a case, whether there is a case or controversy under Article 3, if it's A, a collusive suit. And collusive suits do happen from time to time, and they're not always evil. But if you are really pulling the strings on, on both sides in order to cash in for yourself, there's some, some trouble here that it may have a constitutional dimension beyond just kind of specific trouble for Trump himself. And that's what the district Judge, Judge Williams in the Southern District of Florida was worried about. And she appointed a team of outside lawyers as amicus amiki curiae for herself to assist her in analyzing this jurisdictional question. And it was really an all star cast. It included Don Varilli, former Solicitor General, included John Gleeson, former US District Judge for the Eastern District of New York, who I believe if Memory service prosecuted John Gotti when he was a prosecutor. And they filed a brief and it was interesting, it was kind of nuanced. They stopped short of recommending, you know, outright dismissal of the case, given the absence of a factual record. But they said basically, like, there needs to be adversity between the parties for the court to have subject matter jurisdiction or a federal court to be able to hear the case. And if one party controls the other, then that doesn't exist. And so they, they suggested that the court obtain more information about maybe trying to see whether the, the ongoing settlement negotiations were being conducted at arm's length, whether the DOJ lawyers were insulated in any way. And you know, it's quite possible the end, it's quite likely, I should say, that the answers to those questions are no. And there was nothing being done to make it seem anything other than a sham. And I think that maybe spurred the, the Trump people to yank the case as soon as they could and end this thing before the judge could do anything about it.
- [14:30]
Ben Wittes
That's a great introduction. And you and Anna Bauer have written a kind of exhaustive, I would say, survey examination of many of the issues that arise from this settlement. Let's first describe the various components of it because they're not all clearly linked to each other, though they are clearly coordinated and linked. So it seems to me there's three basic components of this settlement. One is that Trump drops the litigation. And the second is that instead of suing for $10 billion to himself, the Justice Department sets up a 1.776 get it, $1776 billion fund for payment of victims of so called weaponization by Democratic but not Republican administrations. And number three, and this was not announced the same day, it was announced the following day, the Justice Department has committed that the IRS will not conduct any enforcement activity with respect to any pending matters vis a vis Trump's tax returns or those of his family or businesses. Are there more components of the deal than that?
- [16:20]
Eric Columbus
That's right. The third one is actually incredibly, it's actually even broader than how you described it in that it covers anything that is any matters currently pending or that could be pending before any part of the federal government.
- [16:40]
Ben Wittes
It's an immunity deal.
- [16:42]
Eric Columbus
It's an immunity deal. Immunity for any against any possible enforcement action that the federal government could bring at any time based upon anything that you or your family or your businesses or their businesses have done up to the date of the settlement.
- [17:04]
Ben Wittes
And it covers criminal or civil matters.
- [17:07]
Eric Columbus
Well, that's a good question. It, I read it. I mean, it doesn't specify the language that it uses is just kind of, it tends to be kind of civil language. Tends to be civil language. And a criminal immunity is by the terms of the Constitution, something that is bestowed by the president via pardons. And except in the confines of resolving a specific criminal matter is not thought to be something that the Attorney General can do.
- [17:39]
Ben Wittes
Well, except that's not right, because criminal immunity under the immunity statute happens all the time and is done by, you know, simply the government agreeing not to prosecute.
- [17:54]
Eric Columbus
Yes. But in a specific matter, I mean, the government doesn't agree. Okay, I'm just not going to prosecute you for anything you've ever done.
- [18:02]
Ben Wittes
But it does say in the context of plea bargains, you know, you're going to charge, be charged for X, and you're going to plead guilty to acts, and in exchange, we're going to immunize you for any other claim we might have been able to bring. Right.
- [18:19]
Eric Columbus
I think. I don't think that exempts. I don't think those are written so broadly that they exempt you from, like, if you murdered someone, if it turns out you murdered someone, they can't bring that charge against you.
- [18:33]
Ben Wittes
Right. It has to be within the confines of the existing known fact patterns.
- [18:39]
Eric Columbus
Yeah.
- [18:40]
Ben Wittes
So let's take these three in sequence. The first is the dropping of the case. How clear is it that the case was dropped because of the difficulty they were running into with the adversariality question before Judge Williams?
- [19:00]
Eric Columbus
It's not entirely clear. I think there is. There's some kind of evidence that these, they did this in haste. Like, the documents that were signed by Todd Blanche are like, they're. They're like, written like that. It's like almost like a page torn out of a contract. It's not the type of thing that the Attorney General would. Doesn't have, like the bells and whistles of a normal Attorney General order, which is, I mean, it's kind of a sloppiness, is kind of a hallmark of this administration. But it does seem that if they, you know, had the luxury of time, they would have made it look a little bit neater. And as one emphasizes, the reason why they. They wanted to do this as a settlement, and therefore do it while there was still a lawsuit, is so that the payment for this slush fund could come out of what's known as the judgment fund, which is a fund available almost exclusively for the federal government to pay out judgments or settlements in court cases. It's not a piggy bank that the government can just use for any project. So if you claim that you're. You have to the very least claim that this is part of a judicial. That this is to resolve a judicial proceeding in order to use that money.
- [20:27]
Ben Wittes
Right. If it's not related to the case, it's much harder to justify building it in, you know, taking the money from the judgment fund.
- [20:35]
Eric Columbus
Yeah.
- [20:35]
Ben Wittes
What is the judgment fund? And why does the administration get to create a slush fund out of it? That doesn't seem like what it was for. There is no judgment here. Help me out. How clear is it that you can just take this fund and say, here we will build a slush fund for paying my side of the political aisle for claims of vindictive weaponization by the other side of the aisle.
- [21:12]
Eric Columbus
So the judgment fund is essentially a permanent appropriation, kind of like a bottomless pit of funds to pay out judgments. In civil litigation. Judgments and settlements.
- [21:28]
Ben Wittes
People sue the federal government all the time. They win or there are settlements. The government owes out money. This is just an appropriated fund to pay litigation losses.
- [21:42]
Eric Columbus
Yes. And the assumption is that the government will be responsible in, in using it. There has been criticism through the years that it's sometimes been abused and sometimes the government is more or less generous in paying out settlements, depending upon what it thinks of the folks on the other side. And there are people who, during the, during Democrat administrations who say, hey, you guys are paying out settlements in the civil rights sphere and environmental sphere that are in excess of what reasonably plaintiffs stood to gain and taking into account the risks of the government, had the case proceeded. So then there's the judgment fund statute. Cross references another statute that authorize an older statute that authorizes, that provides that the compromised settlement of claims referred to the Attorney General for defense of imminent litigation or suits against the United States shall be settled and paid in a manner similar to judgments in such cases. So in other words, you can pay settlements. Now that statute is very broad and very vague. It refers only to compromise settlements of claims. It doesn't say, you know, this has to be a legit settlement. It doesn't say it can't be, you know, ridiculous. It doesn't even say that the money has to go to the plaintiffs themselves. It doesn't expressly exclude third parties.
- [23:33]
Ben Wittes
So has it ever been used to, you know, so and so has a claim against the federal government, they give up that claim in exchange for the government setting up a fund to give money to other people.
- [23:51]
Eric Columbus
So there's an example of this that the Department of Justice cites and, you know, holds up as the comparison for why this is kosher. And that is a case called Keeps Eagle, which was a class action brought by Native American farmers who alleged that the federal government was discriminating against them in loan applications. The Department of Agriculture and the case was settled during the Obama administration for, I believe, around $760 million. The idea was that the eligible Native American farmers would submit claims to the fund, and any money left over, which the government and the plaintiffs expected would be maybe a pretty small amount, would go to nonprofits working on helping Native Americans of some sort.
- [24:59]
Ben Wittes
But that doesn't strike me as comparable at all, because the fundamental fund is set up to compensate the plaintiffs, that is, the members of the class who brought the suit here. The one plaintiff drops the case, and in exchange, the. The judgment fund is being tapped to set up a fund, the beneficiaries of whom we don't know who they're going to be, but they're not the plaintiff. And so it seems like the settlement is for somebody entirely other than the people who were parties to the litigation.
- [25:40]
Eric Columbus
Yes, yes, exactly. As it turned out, the leftover money in the keepsakel case turned out unexpectedly, turned out to be huge. Turned out to be like a majority of the fund. Like the farmers got, I think, 300 million, and these nonprofits got 380 million. So it was mammoth. And it became very controversial. But the courts concluded that they couldn't do anything about it because the district court had already signed off on the final judgment that approved that provision. And at the time, no one knew how large that leftover pot would be. But yes, you're exactly right here. By design, the entire pot is going to third parties. And unlike the third party, at the very least in Keeps Eagle, the third parties had third party, had a little bit of connection to the plaintiffs and that they were charities working on Native American causes. In a case involving alleged discrimination against Native Americans. Here, there is no real connection between the third parties and the plaintiff, except kind of a corrupt one, that they are kind of his political cronies and
- [26:58]
Ben Wittes
that they're all victims of the same fictitious weaponization of the Justice Department.
- [27:06]
Eric Columbus
Yeah, exactly. And kind of ironic in that the keepsakel case and was something that Republicans hated and got very mad about and there were hearings on in Congress.
- [27:21]
Ben Wittes
Well, they were. They were right to be mad about this aspect of it, that in my opinion, that, you know, having. Having a settlement that operates as a windfall for nonprofit groups that are not, you know, that are not plaintiffs, is not, I don't think, a responsible use of the federal treasury. I don't have a problem with their anger at that. I do have a problem with their doubling down on the premise to. For a much worse abuse. That's not accidental.
- [28:01]
Eric Columbus
But the irony is that they weren't just angry at it, but they actually did something about it. Three months after taking office, Jeff Sessions, who once upon a time was Trump's first attorney general, put out a memoir basically saying, you know, no settlements that give out money to third parties unless it, quote, directly remedies the harm that is thought to be addressed. And then they doubled down on that, and they removed even that exception in 2020, and Merrick Garland rolled it back a little bit so that you have third party payments if there's a strong connection to the underlying violation. And then Pam Bondi, on literally on her first full day in office, issued a memo revoking the Garland memo, which had the effect of reinstating the stricter policies of the first Trump administration. So they're doing something. Todd Blanche is doing something that is not only, you know, ridiculous and outrageous and far beyond the scope of the example that he originally, you know, that he cites as precedent, but that is itself pretty much explicitly banned by his own administration, by his predecessor. And it's. It's something that the Trump administration, that two Trump administrations have fought against when it did involve anyone named Trump.
- [29:23]
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- [35:44]
Ben Wittes
So, all right, let's review the bidding. So far. They unambiguously have the right to drop the case. And there may not be a case at all because there's an adversariality question with respect to the parties and the issue is hastened by the possible complications to the case, which in any event they would lose because of statute of limitation issues. And even if they didn't lose because of statute of limitation issues, they would not prevail. In a large dollar sense, though the case has some significant merit morally that a wrong was in fact done. They have the authority to drop the case. The terms of settlement. The creation of this third party fund is wildly outside of anything the Justice Department has done before, even when it has aired by creating third party accidentally creating significant third party compensation mechanisms in settlements. These this third party compensation mechanism is numerous times the size of any prior one, intentional and wholly unrelated to the nature of the claims in in the suit. But it's not clearly illegal under the terms of the Appropriations bill, right?
- [37:36]
Eric Columbus
Yeah, it's not clearly legal. I mean, one one could make, you know, various arguments about about how this these abuses of the judgment fund exceed the statutes that provide that allow for settlements. But it's really all new terrain legally.
- [37:58]
Ben Wittes
Who has standing to challenge it?
- [38:03]
Eric Columbus
There's the rub, and it's not clear that anyone does because you need to have in order to have standing, you need to have an injury that is concrete and particularized are terms that the Supreme Court has Used that is imminent, not speculative. And that is basically the fault of the people you're suing. And that would be redressed favorably by a judicial decision. And being a taxpayer who's outraged at this waste of money does not suffice.
- [38:46]
Ben Wittes
What about being Letitia James, who gets to walk into court and say, I was indicted by this administration over the objection of grand jurors? They've basically announced publicly intention to persecute me in public. The president has yelled at Pam Bondi in public about the fact that she should be bringing cases against me. They keep going back to grand juries and trying to get me re indicted. They indicted me illegally according to. Eventually the 4th Circuit will say as much as. And oh, by the way, they keep threatening to do it again and again and again. If anybody is a victim of weaponization of the Justice Department, I am a victim of overt weaponization of the just overt proud and declared weaponization to the point that people in the Justice Department are showing up at my house in creepy trench coats, like literally. And yet I am ineligible to apply for compensation from the weaponization fund because I am a Democrat and I am complaining about weaponization by a Republican administration which in a viewpoint discriminatory fashion has engineered this fund to disfavor people like me who have complaints against them and enrich only their political allies who have complaints against my political party. So I a contend that I have a unique injury. These people are. Are coming after me. They deny me access to the fund that they created was. Which they are deploying in a viewpoint discriminatory fashion in violation of the First Amendment. Why do I not have standing?
- [41:02]
Eric Columbus
Well, that's interesting at first, I would say that she is not excluded not by virtue. She's not excluded by being virtue of Democrat. There's, there's nothing in the, in the description of the fund that says that. And in fact, Todd Blanche, who coincidentally was testifying before Congress on Tuesday, said, look, Hunter Biden can apply if he wants. Which is kind of a clever thing to say because as Todd Blanche knows, Hunter Biden was prosecuted under a Democratic administration, so he could. It's a clever example to use of how, you know, even if the. The fund is limited to Democratic administration abuses, that could cover abuses against just about anyone, even the president's son. You could. And you know, it's. I suppose it's possible that they could write it a little bit more broadly to get it around a Letitia James type suit by kind of removing the limitation to Democratic administrations, which was a Little bit ambiguous in the original.
- [42:08]
Ben Wittes
I mean, but it's there. If you were prosecuted by this administration, if your name is Kilmar Abrego Garcia or Jim Comey or Letitia James or Monica MacGyver, it doesn't matter how strong your claim is, you are ineligible. And that strikes me as a non, neutral viewpoint, discriminatory First Amendment problem.
- [42:35]
Eric Columbus
I could see someone bringing that case. I mean, the Trump administration would, would respond by saying, look, it is not, it's a limitation on who the wrongdoer is. Hunter Biden can, can, can bring his case. Any number of people of, you know, leftists, criminals, whoever, who were, you know, targeted by Department of Justice and Democratic administration are welcome to apply. The government can, can pick or choose the wrongs that it wants to remedy. For example, the 911 fund, if memory serves, I think did not done by act of Congress. Yes, but the First Amendment is the same. You could, you know, that that didn't apply to the 1993 World Trade center bombing, if memory serves. And, or didn't. It definitely didn't apply to other terrorist acts that were unrelated. And so the government was favoring one type of victim over another.
- [43:38]
Ben Wittes
Of course, it wasn't favoring one type of victim of its own action. Right. The, the, the Trump administration sometimes treats the federal government under the prior administration as though there's no continuity between the entities. Right. And I, I don't know that you can do that as a. I'm not sure if the principle resides in the First Amendment or if it resides in, you know, some equal protection principle, but it seems to me that Letitia James has a legit complaint, at least as an equitable matter, that, you know, you set up a fund on, on weaponization that allows, you know, frankly, meritless claims by people, you know, who actually committed crimes while excluding highly merited claims by people who are the subject of actual weaponization. I would be troubled by that if I were a federal judge.
- [44:51]
Eric Columbus
Yeah, I mean, I think that such a plaintiff might emerge and might try to mount a First Amendment argument based on the quite clearly intended design to benefit people of a certain viewpoint, which the government can, you know, which Todd Blanche has already been pushing back on. And the government, if they are smart and if they're allowed to be smart, can try to somewhat deftly mitigate in the construction of the claims process. But then there also is, as you say, an equal protection component about the type of victim that I think is probably uphill battle because the government, as I said, can, can. Is allowed to pick and choose but what types of victims it wants to harms that wants to remedy. But you know, these are, these are things that could be raised in litigation and obviously the judges, or I should hope it's obvious the judges, you know, think this whole thing stinks. Are going to think this whole thing stinks to high heaven and may look more favorably than otherwise on attempts to kill it.
- [46:05]
Ben Wittes
All right, let's talk about this third category which has nothing to do with the fundamental. It's just a kind of codicil that comes out the next day saying oh by the way, you're immunized for everything from the dawn of time until now. How is that possibly lawful? And again, who has the, who has standing to challenge it or is it simply a matter of the next administration tears it up and says such a thing is not consistent with public policy and no such contract is enforceable?
- [46:48]
Eric Columbus
Yeah, I think it's the latter. I don't see how anyone would have standing to challenge a non enforcement decision. I mean arguably there could be some type of competitor standing if one organization is in the say there's some real estate company that is competing with with the Trump Organization and the government has gone after them but not after the Trumps. But I think that would be very hard to imagine that prevailing and it's I do think a future Department of Justice would treat it as presumptively invalid. It's not clear that how Todd Blanche has the authority even to say this do it as part of a settlement. It's really weird that Blanche the second part of the deal was this part of the deal was separate from the other part both in what it is and also in time. It wasn't part of the settlement agreement. It was posted and apparently signed dated the following day somewhat conveniently right after Blanche finished his congressional testimony. Blanche is not a party to the case. Sorry. It says at the beginning of it that this is being done to effectuate the settlement agreement and the anti weaponization fund which is kind of the same language used in his order the previous day that kind of set up the fund but it's kind of head scratcher because this release of liability has nothing to do with the fundamental and Blanche just posted it yesterday. But he's not a party of the case. He's not exercising any authority delegated to him by the settlement agreement. And the settlement agreement it was at least signed by the IRS's top official. So it's very strange and the self dealing arguments are even stronger here than in than with the fun and they're quite strong there, but they're even stronger here because this is just, you know, I'm going to give you, I, the Attorney general who you appointed am going to give you, you know, get out of, well, if not jail, get out of civil liability free fund for forever and ever. So I think this would be torn up by a future Department of Justice assuming that they, I mean, they're not going to go after Trump in a civil matter just for the sake of doing so, I don't think. But if, for example, that the New York Times reported that there was an ongoing audit of Trump that could well cost him over a hundred million dollars, they reported this, I think in 2024, the Department of Justice, the, the IRS might well reopen that under a new Democratic administration and let, and then once the audit's completed, sue Trump for the money and let Trump argue that he was somehow given a immunity by his own Attorney general.
- [49:54]
Ben Wittes
So the net effect of this is not that it prevents the government from seeking liability in some future administration against Trump or his entities or his members of his family. It's really that it provides an argument that would have to be overcome to Trump that the Attorney General signed this document that immunized me.
- [50:22]
Eric Columbus
Well, I mean it purports to prevent any.
- [50:27]
Ben Wittes
But he would argue. So some future Attorney general, say Attorney General Eric Columbus comes in and tears up that document and the IRS brings this lawsuit for say $100 million and Trump argues no, that's precluded by the blanche document. And the real consequence of this is that the government would have this extra step of arguing in court that the document is not enforceable.
- [51:00]
Eric Columbus
Yeah. And that's analogous, for example, to say if Trump decided to pardon himself on his last day in office and there are strong arguments as to why a self pardon is invalid like, like say that he committed some clearly unofficial act that was a crime, that that was a federal crime and he pardoned himself on the last day, the future Department of Justice could choose to prosecute him for that and let courts sort out whether or not his self pardon was valid.
- [51:35]
Ben Wittes
All right, I want to close this with a moment on the ethics questions vis a vis Todd Bland. Blanche, you are a member of in good standing of what bar you, meaning Todd Blanche or no, meaning you, Eric
- [51:52]
Eric Columbus
Columbus, the District of Columbia.
- [51:55]
Ben Wittes
And if you were to say go back into the Justice Department and be assigned to work on or let's say you were asked to work on or you were at a political level where you could assign yourself work on a matter that involved a recent former client, and you engineered or supervised or signed off on a settlement that allowed the creation of a giant slush fund at the political disposal of that worth 1.776 billion to benefit the friends and political allies of your former client. And the next day, you signed a statement immunizing from civil liability, your former client from the dawn of time till now, and the person's businesses and. And. And family members for any civil liability for anything, and maybe criminal liability, too. Would you fear that somebody would file a bar complaint with the District of Columbia saying you're not allowed to use your current position to enrich your former client, that that is a. An actual conflict of interest, not an appearance of a conflict of interest, an actual conflict of interest, and you're not allowed to participate in that matter. Why is Todd Blanche so completely unafraid of that bar complaint?
- [53:49]
Eric Columbus
Well, to answer that question, I think that the worst case scenario for Todd Blanche would be that he is disbarred from practicing law, and he could have a long, happy and wealthy life without doing it. And this would be many years down the road in any case. And for that matter, even if he's disbarred, he could still be Attorney General without being a member of the bar.
- [54:13]
Ben Wittes
Well, he wouldn't be able to actually sign briefs that appear in court, correct?
- [54:18]
Eric Columbus
Correct. Although, before being attorney before this administration,
- [54:22]
Ben Wittes
I've looked into this because, you know, I have occasionally wanted to be Attorney General, and that whole not being able to represent that I'm an attorney thing would. Would be a problem.
- [54:34]
Eric Columbus
Well, actually, before this administration, the Attorney General's name did not appear on briefs. It's one of the weirder but probably least meaningful novelties, if you will, that the. This administration has introduced. I believe it's actually quite possible that if you're not a member of a bar, you cannot be paid by the Attorney General. There's actually a statute regarding that.
- [54:59]
Ben Wittes
It's a grave injustice in my life, I'm afraid. But, but seriously, if you were in Todd Blanche's role, I mean, you would fear for your law license, right?
- [55:09]
Eric Columbus
So. So it's interesting, and I'm trying to remember the DOJ ethics rules that I used to be subject to regulations, and I think in some cases, criminal statutes. I don't think that the setting up of the fund itself is an issue because it does not benefit Trump himself in the. In the strict financial sense. And I believe it actually says in the settlement agreement that the plaintiffs are not allowed to get any money from the fund. Now you might say, and quite possibly with good reason, that even so, Blanche was involved in settling a case that was brought by his former client and therefore he should have been recused from anything arising out of that. Now, technically, the settlement, he was just effectuating something already done by the settlement agreement. So, you know, maybe it's permissible, I don't know. But then you get to the weirder the harder question, I think is the civil liability immunity because the settlement agreement does not purport to address that. And Blanche is kind of claiming it does, which is weird. But if it doesn't, then he's just kind of, you know, giving something, he's
- [56:35]
Ben Wittes
freelancing immunity to his former client. I sat in a court for six weeks with Todd Blanche while he represented this man in a criminal trial. You know, that criminal trial is the New York State case is still under appeal in the Second Circuit. He was counsel of record in the underlying case. I don't see how you can, you know, as a lawyer for a client with a criminal conviction currently before the New York First Division Appellate Court in New York and they're still trying to get it removed to federal court. How you can take, how you can represent that client, you got that. And you are engineering immunity for him from the federal government. I just don't see how that's possibly ethical.
- [57:36]
Eric Columbus
I think there are some very serious problems there, folks.
- [57:39]
Ben Wittes
We're going to leave it there. Eric Columbus, thank you for joining us. You can read Eric's and Anna Bauer's lengthy examination and detailed examination of this series of matters on Lawfare. Eric, remind me, what is the headline of the piece?
- [57:59]
Eric Columbus
What's it called is called the President who Sued Himself.
- [58:04]
Ben Wittes
The President who Sued Himself about sums it up. Eric, thanks for joining us today.
- [58:11]
Eric Columbus
Thanks, Ben.
- [58:15]
Ben Wittes
The Lawfare podcast is produced by the Lawfare Institute. You can get ad free versions of this and other Lawfare podcasts by becoming a material support supporter of Lawfare at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Jen Patia and our theme music is from Alibi Music. As always, thanks for listening. Foreign.
- [58:57]
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